United States Court of Appeals,

Fifth Circuit.

No. 95-60022.

Jorge M. HAMDAN, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Oct. 25, 1996.

Petition for Review of an Order of the Board of Immigration Appeals.

Before POLITZ, Chief Judge, and DeMOSS and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

JORGE M. HAMDAN ("HAMDAN"), a citizen of Nicaragua, entered the United States as

a lawful permanent resident. HAMDAN petitions this court for review of the Board of Immigration

Appeals' ("BIA") determination t hat t he appellant is deportable because he was convicted of two

crimes involving moral turpitude pursuant to 8 U.S.C. § 1251(a)(2)(A)(ii). HAMDAN claims that

the BIA erred in finding that his conviction under the Louisiana simple kidnapping statute constitutes

a "crime involving moral turpitude" ("CIMT") for purposes of United States immigration laws.

PROCEDURAL HISTORY

On August 17, 1988, the Immigration and Naturalization Service ("INS") issued an order to

show cause against Hamdan, charging him with deportability for the con viction of two crimes

invo lving moral turpitude not arising out of a single scheme of criminal misconduct. The convictions

considered by the INS were petitioner's March 22, 1985, conviction for indecent behavior with a

juvenile and his May 20, 1987, conviction on two counts of attempted simple kidnapping, the latter

of which resulted in a concurrent 2-year sentence. Hamdan did not dispute that his 1985 conviction

was a CIMT, but argued that his 1987 conviction record did not support a finding of moral turpitude.

In his oral decision on October 24, 1990, the immigration judge ("IJ") found that both convictions

were CIMTs and denied petitioner's applications for asylum and withholding of deportati on. The IJ

also denied Hamdan's request for voluntary departure, ordering him to be deported. In its January1 Section 1251 provides, in pertinent part:

(ii) Multiple criminal conviction. Any alien who at any time after entry is

convicted of two or more crimes involving moral turpitude, not arising out of a

single scheme of criminal misconduct, regardless of whether confined therefor and

regardless of whether the convictions were in a single trial, is deportable. 5, 1995, order the BIA dismissed Hamdan's appeal of the IJ's order. Hamdan petitions for review of

the BIA's order.

STANDARD OF REVIEW

In reviewing the decision of an administrative agency, we accord substantial deference to the

agency's interpretations of the statutes and regulations it administers. I NS v. Cardoza-Fonseca, 480

U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). We must uphold the BIA's

determination

o f what conduct constitutes moral turpitude for purposes of deportation if it is

reasonable. I redia v. INS, 981 F.2d 847, 848 (5th Cir.), cert. denied, 510 U.S. 872, 114 S.Ct. 203,

126 L.Ed.2d 160 (1993). However, a determination that the elements of a crime constitute moral

turpitude for purposes of deportati on pursuant to Section 1251(a)(2)(A)(i) is a question of law, which

we review de nov o. I

NS v. Cardozo-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 1221, 94

L.Ed.2d 434 (1987); Cabral v. INS, 15 F.3d 193, 196 n. 5 (1st Cir.1994).

We accord deference to the BIA's interpretation of questions such as those before us here,

applying a two-prong standard of review, as we said in Animashaun v. INS:

We first consider the legal standard under w hich the INS should make the particular

deportability decision. If the governing statute does not speak clearly to the question at hand,

this court has applied the standard announced in Chevron, U.S.A. Inc. v. National Resources

Defense Counsel, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and upheld

agency interpretatio ns o f ambiguous law when that interpretation is reasonable. I d. After

determining the controlling legal standard, we will next examine the Board's findings under

the substantial evidence test to determine whether the legal standard has been satisfied. R ojas

v. INS, 937 F.2d 186, 189 (5th Cir.1991). The substantial evidence standard requires only

that the Board's conclusion be based upon the evidence presented and that it be substantially

reasonable. Silw

any-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir.1992).

Animashaun v. INS, 990 F.2d 234, 237 (5th Cir.1993). S ee also Carbajal-Gonzalez v. INS, 78 F.3d

194 (5th Cir.1996).

DISCUSSION

Hamdan was found deportable pursuant to 8 U.S.C. § 1251 1 for having been convicted of two8 U.S.C. § 1251(2)(A)(ii) (Supp.1995).

Hamdan does not dispute that, for immigration purposes, no distinction is made

between an attempt to commit and actual commission of a CIMT. Matter of Aw aijane, 14

I & N Dec. 117 (BIA 1972). crimes invo lving moral turpitude. Hamdan's 1985 conviction for indecent behavior with a juvenile

is uncontested. The issue before us is whether Hamdan's 1987 conviction for attempted simple

kidnapping under the Louisiana statute constitutes a crime involving moral turpitude.

I. Moral Turpitude Defined

The INS Act doe s no t define moral turpitude, and legislative history does not reveal

Congress' intent. C

abral v. INS, 15 F.3d 193, 195 (1st Cir.1994). "Congress left the [term] to future

administrative and judicial interpretation." I d. A section of the regulations discussing moral turpitude

for purposes of deportation generalizes as follows:

§ 40.21 Crimes involving moral turpitude and controlled substance violators.

(a) Crimes involving moral turpitude

—

(1) Acts must constitute a crime under criminal law of jurisdiction w here they occurred.

Before a finding of ineligibilit y under INA 212(a)(2)(A)(I)(I) may be made b e cause of an

admission of the commission of acts which constitute the essential elements of a crime

involving moral turpitude, it must first be established that the acts constitute a crime under

the criminal law of the jurisdiction where they occurred. A determination t hat a crime

involves moral turpitude shall be based upon the moral standards generally prevailing in the

United States.

22 C.F.R. § 40.21 (1996). This broad definition requires t hat a finding of deportability rest on a

determination 1) that the petitioner committed an act considered a crime in the jurisdiction of

occurrence and 2) that it is a crime of moral turpitude.

In Hamdan's case, the BIA aptly summariz es the body of judicial and administrative

interpretation of the general definition:

Moral turpitude refers generally to conduct that shocks the public conscience as being

inherently base, vile, or depraved, and contrary to the accepted rules of morality and the

duties owed between persons or to society in general. S ee Matter of Franklin, Interim

Decision 3228 (BIA 1994); M atter of Short, [Interim Decision 3125 (BIA 1989) ]; M atter

or Danesh, 19 I & N Dec. 669 (BIA 1989); M atter of Flores, supra. Moral turpitude has

been defined as an act which is per se morally reprehensible and int rinsically wrong, or malum

in se, so it is the nature of the act itself and not the statutory prohibition of it which renders

a crime one of moral turpitude. M atter of Franklin, supra; Matter of P-, 6 I & N Dec. 795

(BIA 1955). Among the tests to determine if a crime involves moral turpitude is whether the2

Matter of Nakoi, 14 I & N Dec. 208 (BIA 1972); Matter of C-M-, 9 I & N Dec. 487 (BIA

1961); Matter of P-, 6 I & N Dec. 795 (BIA 1955).

3 The federal kidnapping statute reads, in pertinent part:

(A) Whoever unlawfully seizes, inveigles, decoys, kidnaps, abducts, or carries

away and holds for ransom or reward or otherwise any person, except in the case of a

minor by the parent thereof.... shall be punished by imprisonment for any term of years or

for life and, if the death of any person results, shall be punished by death or life

imprisonment.

18 U.S.C. § 1201 (1994 & Supp.1995). act is accompanied by a vicious motive or a corrupt mind. See Matter of Perez-Contreras,

Interim Decision 3194 (BIA 1992); M atter of Serna; supra; Matter of Short, supra;

Matter of Danesh, supra; Matter of Flores, supra.

BIA Decision at 4. We find no error in the BIA's definition of moral turpitude.

II. Louisiana Kidnapping Statute and CIMT Analysis

The petitioner does not argue that a conviction for kidnapping cannot constitute a crime of

moral turpitude. Instead, Hamdan argues that the cases relied on by t he INS fo r the premise that

kidnapping is a CIMT 2 involve the federal kidnapping statute, 18 U.S.C. § 1201, 3 which is

substantively distinguishable from t he Lo uisiana kidnapping statute. Hamdan does not specify

particular sections of the statute; instead, he argues:

All or most of the subsections of the statute here at bar, any one of which Mr. Hamdan may

have been convicted under, reach various misdeeds that do not involve moral turpitude, and

he therefore may not be deported as charged.

Petitioner's Brief at 6.

The Louisiana simple kidnapping statute provides for five categories:

A. Simple kidnapping is:

(1) The intentional and forcible seizing and carrying of any person from one place to

another without his consent; or

(2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any

child not his own and und er t he age of fourteen years, without the consent of its

parent or the person charged with its custody; or

(3) The intentional taking, enticing o r decoying away, without the consent of the

proper aut ho rity, of any person who has been lawfully committed to any orphan,

insane, feeble-minded or other similar institution.

(4) The intentional taking, enticing or decoying away and removing from the state, byany parent of his or her child, from the custody of any person to whom custody has

been awarded by any court of competent jurisdiction of any state, without the consent

of the legal custodian, with intent to defeat the jurisdiction of the said court over the

custody of the child.

(5) The taking, enticing or decoying aw a y and removing from the state, by any

person, other than the parent, of a child temporarily placed in his custody by any court

o f competent jurisdiction in the state, with intent to defeat the jurisdiction of said

court over the custody of the child.

14 L.A.Rev.Stat. § 45A (1986). Hamdan correctly notes that, unlike the federal statute, the

Louisiana kidnapping statute does not include ransom and expressly includes removal by a parent.

Hamdan claims that, since the statute at issue encompasses conduct that does not constitute moral

turpitude, a finding of moral turpitude cannot lie unless the evidence shows w hich section of the

statute he was convicted under.

As a general rule, if a statute encompasses both acts that do and do not involve moral

turpitude, the BIA cannot sustain a deport ability finding on that statute. M atter of Short, Interim

D ec. 3125, slip op. at 3 (BIA 1989). An exception to this general rule is made if the stat ut e is

divisible into discrete subsections of acts that are and those that are not CIMTs. If a petitioner has

been convicted of a subsection that has been determined to be a CIMT, that conviction may be used

to sustain a finding of deportability. Id.

At the deportati on hearing before the IJ, the petitioner argued that the Louisiana statute is

divisible, in contrast to the federal kidnapping statute. The government argued that "the Louisiana

kidnapping statute is ample to support a crime invo lving mora l t urpitude." Deportation Hearing

Transcript at 11. The IJ stated that his understanding was as follows:

Well, there's no doubt that

... of course, what you're saying some acts, I l ook upon y our

statement as saying that, you know, the act

... some of these acts are broad enough to cover

the statutes, broad enough to cover many acts not invo lving moral turpitude such as forcibly

restraining or carrying a child from a burning building or holding a child against its will as a teacher, et cete ra. Ho wever, I believe that those offenses or those acts would be lacking

criminal intent and I think that the act itself would not be found

... in my opinion, the act itself

would not be criminal for what you're talking about and would result in the acquittal of the

individual.

Id. The IJ declined to make his determination applying a divisibility analysis, ruling instead on

kidnapping generally:

[Counsel for Petitioner]: Nothing in the convict io n shows moral turpitude and the statuteitself does not necessarily require it and under those circumstances, we think it would be a

grave mistake to find him deportable on ... on these charges, Your Honor.

[The Court]: Well, I'm going to overrule your objection and I find the crime of kidnapping

is a crime of moral turpitude and it's basically an act of abasement, violence, and depravity and

that I think it's well described by the private and social duties which a man owes to his fellow

in society in general and I think that th e t aking by force against the will of an individual as

defined by

... and it's a criminal act as defined by the Act, I find t hat it is a crime involving

moral turpitude and I'm going to rule against you and accordingly, I find that deportability has

been established by evidence which is clear, convincing and unequivocal.

[Counsel for Petitioner]: Your Honor, just to clarify, you say kidnapping is a crime involving

moral turpitude. Is that in general or under the Louisiana statute?

[The Court]: That's under the Louisiana statute.

Id. at 17. In his written decision, the IJ reiterated his conclusion that kidnapping was a CIMT:

Looking at the exclusion grounds at issue, the Court finds that the exclusion grounds

at issue to be very, very significant. The criminal record here is very serious. At t empted

kidnapping and as set fort h, indecent behavior with a juvenile in violation of Louisiana

statutes and I stated attempted kidnapping so looking at the conviction documents, they are extremely seriou s co nvictions, extremely serious misconduct and they cannot likely be

disregarded or minimized. This misconduct is not one offense but two specific offenses, two

separate acts that required individual thought and also indicate that once the respondent has

been convicted of one that the misconduct did not stop but continued again and the

respondent again was not a child of 16 when these acts occurred but adult and should fully

have realized the consequences of hi s act ions and the trauma and the effect that his

misconduct may have had upon the victims and it is noted that these are not drug offenses;

that drug offenses where often it is stated that there are no victims, in these particular cases

there were three distinct victims.

Id. at 11.

On appeal from the IJ' s decision, the BIA laid out the appropriate divisibility analysis,

requiring that if moral turpitude does not necessarily inhere, "it is to be treated as a "divisible' statute

and thus, we look to the record of conviction, meaning indictment, plea, verdict, and sentence, to

determine the offense for which the responde nt was convicted." Decision of the BIA at 3 (citing

Matter of Esfandiary, 16 I & N Dec. (BIA 1979); M atter of Ghunaim, 15 I & N Dec. 269 (BIA

1975); Matter of Lopez, 13 I & N Dec. 725 (BIA 1971)).

In addressing this argument, the BIA noted that the Louisiana statute "provides for several

alternative bases for conviction of simple kidnapping." I d. The BIA also defined the scope of its

inquiry as that required for a divisible statute:

While the respondent argues that some of these alternative bases provide for offenses which

do not involve moral turpitude, we turn to the record of conviction to di scern the actualoffense that the respondent was convicted. A copy of the indictment pursuant to which the

respondent pled guilty to two counts of attempted sim ple kidnapping is contained in the

record (Exh. 3).

Id. As to petitioner's argument that it was unclear what section of the kidnapping statute Hamdan

violated, the BIA responded that "the respondent's conviction does not f all within the custodial

provisions." Id. The BIA based this finding on two facts: 1. the names of the victims as set forth

in the indictment did not match Hamdan's name, and; 2. that Hamdan did not claim to have custody

or be the parent of the victims. Finally, the BIA found: "Even if we accept the respondent's argument

that this statute is broad enough to cover offenses which do not involve moral turpitude, we find that

his conviction did not fall under those provisions." Id. at 4.

The BIA also stated that the absence of ransom did not preclude a finding that the Louisiana

statute was a CIMT:

While this distinguishes the exact convictions involved in the t hese [sic] cases, it does not

preclude a finding that the current crime at issue involves moral turpitude.

Id. Furt her, in finding that the Louisiana simple kidnapping statute is a CIMT, the BIA stated its

rationale:

In examining La.Rev.Stat. § 14:45, we note that the statute specifies that the criminal act

must be intentionally done before a conviction can be maintained. Moreover, the commission

of this offense, by its very nature, would ordinarily present a risk that physical force would

be used against the person. We find that kidnapping involves an act, irrespective of whether

an element of extortion is involved, which grievously offends the moral code of mankind in

its inherent nature, and denotes an act of baseness, vileness or dep ravit y in the private and

social duties which a man owes to his fellow man, o r to society in general. We therefore

conclude that the crime of which the respondent has been convicted involves moral turpitude,

and that he is deportable as charged under section 241(a)(4) of the Act.

Id. at 5.

The BIA's conclusion that the statute's requirement of intent in order to commit the crime

is dispositive is erroneous. The BIA has previously held that the intent to commit a crime is not the

equivalent of the evil intent of a CIMT. G oldeshtein v. INS, 8 F.3d 645, 648 (9th Cir.1993)

(conviction of willful conduct does not establish evil intent for a CIMT); I n Matter of Short, Interim

Dec. 3125 (BIA 1989) ("[T]here must be a finding t hat t he felony intended ... involves moral

turpitude"). And, while kidnapping has been found to be a crime of moral turpitude, such findings

did not involve each type of conduct encompassed in the Louisiana kidnapping statute. We do not4 Hamdan objects to the INS' shifting of the burden to petitioner. The burden is on the

government to prove deportability by clear, unequivocal and convincing evidence. Woodby v.

INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). In its brief submitted to this court, the

INS phrases this argument without any discussion of Hamdan's burden, claiming that if this

conduct fell under the non-custodial provisions, the facts would have been specifically pled in the

indictment: "These subsections obviously require very specific factual allegations, none of which

were present in the language of the indictment quoted above." This assertion is erroneous;

La.C.Cr.P. Art. 465(30) requires merely that an indictment charging simple kidnapping plead that

"A.B. kidnapped C.D." agree with the BIA that because Hamdan's name differs from those named in the indict ment and

because he did not claim be a parent or custodian, 4 that the record demonstrates that his conduct did

not fall within provisions addressing conduct which may not involve moral turpitude.

In this court, the government argues that the indictment does not allege that Hamdan was a

parent or that he was a temporary custodian of a child. However, the BIA did not rely on the lack

of specificity in the indictment in its decision. Furthermore, the indictment also does not allege that

Hamdan's conduct constituted criminal conduct covered by the non-custodial provisions. The

indictment simply states that Hamdan "did attempt to commit si mple kidnapping" of Molly Van

Riesen and Ashley Theobald.

The INS also argues that the indictment contains the term "with force and arms," necessarily

referring to non-cus t o dial provisions of the statute. This use of archaic boilerplate, unnecessarily

included in many Louisiana indictment forms, regardless of whether the crime involves a use of force

or arms, is virtually irrelevant to whether the charge was brought under any particular section of the

simple kidnapping statute.

In its analysis, the BIA applied the divi sibilit y analysis to the statute without specifying in

which sections moral turpitude necessarily inheres. We agree that this statute covers conduct that

cannot be considered inherently morally turpitudinous, and that the analysis must extend beyond the

statute to the record of convict io n. We do not make a determination as to which sections of the

Louisiana simple kidnapping statute co nst it ut e a CIMT. We focus instead on the BIA's failure to

make the requisite factual findings for a determination that Hamdan was convicted under a section

invo lving moral turpitude. The facts elicited from the indictment do not give any reliable indication

that Hamdan was convicted of a particular violation constituting a CIMT. The general rule is that,absent specific evidence to the contrary in the record of conviction, the statute must be read at the

minimum criminal conduct necessary to sustain a conviction under the statute. U nited States ex rel.

Guarino v. Uhl, 107 F.2d 399 (2d Cir.1939). Even under the deferential standard of review for

factual findings of the BIA, we find that its conclusion was not supported by substantial evidence and

was, therefore, unreasonable.

In or der t o find that Hamdan's conviction for attempted simple kidnapping constitutes a

CIMT, the INS must find by the required standard of proof which section of the Louisiana kidnapping

statute Hamdan violated and that that section constitutes a CIMT. Accordingly, further review of

the record of conviction is required to determine whether sufficient evidence supports a finding that

Hamdan was convicted under one of the sections determined by the BIA to be a CIMT.

CONCLUSION

Based on the above analysis, we GRANT the petition for review. We VACATE the decision

of the BIA and REMAND for further proceedings to determine whether the record of conviction

clearly reveals that Hamdan was convicted unde r a section of the simple kidnapping statute

criminalizing conduct that involves moral turpitude.